Workshop rethinks how the law treats human vulnerability

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No less than “a new way of thinking about the foundations
of law” was on the table at an innovative workshop that took
place on June 13 and 14 at SUNY Buffalo Law School.

The workshop – “Vulnerability, Resilience, and
Public Responsibility for Social and Economic Well-Being”
– brought together progressive thinkers in law and other
disciplines to explore some fundamental questions about how law
might improve the human condition.

Professor Martha T. McCluskey, the William J. Magavern Faculty
Scholar at SUNY Buffalo Law, organized the workshop in
collaboration with Emory University law professor Martha A. Fineman
and Hunter College social work professor Mimi Abramovitz.

“The idea,” McCluskey says, “is to shift from
the current assumption in law in the United States that people are
generally autonomous, self-reliant individuals making their own
bargains for their own economic well-being. We’re trying to
shift that assumption to recognize that the universal condition of
being human is that we are interdependent, and throughout our life
cycle often we’re dependent on others.” Infancy is the
first instance, but as well many if not most people will experience
periods of disability and illness, she notes.

The workshop, McCluskey says, asked, “How does the
question of government’s role in advancing and protecting
economic well-being change when we change that
assumption?”

That idea of universal human vulnerability, and the law’s
role in supporting the people it serves, is paired with the concept
of resilience – people’s ability to overcome adversity
and thrive. “The goal of law in promoting well-being is not
simply to get a bigger piece of the economic pie,” McCluskey
says. “Rather, it’s rather to provide resilience, the
ability to respond to the ongoing series of risks and
vulnerabilities that we all face. We want to build up
people’s capacity to respond and meet their needs. That
doesn’t mean being independent, it means getting the supports
you need so that you can weather the vicissitudes of
life.”

That involves a different measuring stick for assessing the
effects of social policies. Rather than simply assessing
people’s economic well-being, McCluskey says, policies should
be judged by how well they secure a society against another
financial-system meltdown, or protect against environmental or
climate catastrophe, or provide a safety net of services and
support in times of illness.

It’s a question with important implications for wrestling
with economic inequality, McCluskey says, when we recognize that
what we think of as a market of free economic choices is in fact
“permeated with legal institutions that are premised on
protecting some vulnerabilities but not others.” For example,
she says, the legal fiction that a corporation is a person means
that it is given legal privileges, such as protection from
individual civil liability for its investors.

The workshop grew out of Emory University’s Vulnerability
and the Human Condition project as well as SUNY Buffalo Law’s
Economic Justice Studies Project, which looks at how law has played
into such problems as the financial crisis and growing income
inequality, and how it might be part of the solution. The aim,
McCluskey says, is “to look not just at technical policy
solutions but to step back and look at the big picture and ask
questions about foundational assumptions.”

Among the workshop presenters were SUNY Buffalo Law lecturer
Christine P. Bartholomew, whose paper is called “Redefining
Prey and Predator in Class Actions.” Other presenters came
from the law schools of the University of Tennessee, the University
of Victoria, the University of San Francisco, Tulane University,
Seattle University, the University of Hawaii, Emory University, Tel
Aviv University, Shandong University in China and the University of
Toronto.

Contact: Shibley can also be reached through David Hill
in UB Media Relations (716-645-4651, davidhil@buffalo.edu) or
Rachel Teaman in the School of Architecture and Planning
(716-829-3794, rmansour@buffalo.edu).